Cornell Law ReviewVolume 15Issue 3 April 1930 Article 3

Bar AssociationsPhilip J. Wickser

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Recommended CitationPhilip J. Wickser, Bar Associations, 15 Cornell L. Rev. 390 (1930)Available at: http://scholarship.law.cornell.edu/clr/vol15/iss3/3

BAR ASSOCIATIONS

PHILIP J. WICKSER*

I

Bar associations, state and local, have rapidly increased in numberduring the last thirty years; more rapidly in proportion, than hasthe profession or the population.' Does this reflect a heighteninggroup consciousness within the profession, or merely an increasedappetite for good fellowship and postprandial felicity? Since 1916,much discussion of the duty of the bar to the public, and considerableexperimentation in an endeavor to find a suitable vehicle for itsdischarge, has taken place. Many think, or seem to believe, thatAmerican lawyers have never desired to constitute themselves aguild, and have not the capacity, en masse, to assume its responsi-bilities. Others are more optimistic. The discussion has developedthree main theories as to how the bar ought to organize, the implica-tions of which often clash. Premature insistence upon the universalvalidity of any one of them, and the frequent employment of anevangelistic technique in its behalf, has not, however, shown muchpromise of solving the problem. The profession as a whole has thusfar spoken haltingly and made confused decisions. It is as thoughit sensed a need first to inform and arouse itself, before decidingwhether or not its collective and public obligations call for morecomplete and powerful organization, and, if so, what form thatorganization should take. Until opinion has been more generallydrawn out, no one can say whether, under the widely varying con-ditions of today, a compulsorily incorporated bar, a federated bar, orthe selective voluntary association promises most. But anyone issafe in asserting that the apathy of the bar as a whole, the myopicattitude of the great majority toward the social realignments thatare taking place all around them, and toward the changing status ofthe lawyer and his group, promises nothing good.

Perhaps some examination of the units with which we have todeal, and, with it, some scrutiny of the history and development ofassociational activity in this country, thus far, may be in order.Group progress must always overcome the undertow of tradition,but overcomes it better when its causes and its force have beenanalyzed and gauged.

*Member of the Buffalo (N. Y.) Bar; President, Federation of Bar Associa-

tions of Western New York, 1927-28.

'See Appendix, Tables I and II.

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II

To begin with, it must be recognized that we shall start and finishwith an individualist, and deal with a group which has never beenable to resolve completely the conflict between the social and a-socialaspects of its calling. Even though a casual reading of the newspaperssoon deflects one's attention to the picture of lawyers regardingthemselves, and offering themselves to be regarded by others, in acollective capacity, the individual lawyer still uses an individualist'sterminology. He knows that he must develop in himself courage tomake decisions, and a willingness to accept personal responsibility.He has seen many a weaker brother leave clients in a morass of in-decision, only to be left, presently, to enjoy the morbid pleasures ofdoubt, unencumbered by clients. He knows that the most importantquestions before him are seldom decided by vote, or even, in thenarrow sense, by cooperative effort. His immediate horizon boundsa world wherein one occasionally speaks of collective activities andduties, but thinks in terms of personal ones. This is true eventhough, to some extent, lawyers have always sensed the necessityfor organizing themselves (just a little, perhaps, when they hadfinished organizing the laity). Self-preservation has dictated thatthe window be kept carefully dressed, and that the idea of the "bar",as an entity, be kept current. And so he has made laws whichinsured his prerogatives, and implied the corporate status of a guild-but a guild, indeed, which was to be left to experience an eternaladolescence. Yet, as time goes on, the underlying dilemma becomesmore acute, and many members of the younger bar seem to thinkimperative some solution of the essential conflict between inclinationsand traditions, highly individualistic and conservative, and a worldwhose progress tends more and more to depend upon organizationand to lean toward a collectivist philosophy.

III

What were the reasons that caused the American lawyer to developcharacteristics so predominantly individualistic? Why is it, as DeanPound has said, that even today "in the ordinary American juris-diction, there is no bar, in the sense of the bar in England, or theFaculty of Advocates in Scotland, or the societies of advocates onthe continent"? Why, "instead, simply so many hundred or somany thousand lawyers, each a law unto himself, accountable onlyto God and his conscience,-if any" ?2 Undoubtedly, the economicand social background against which the American lawyer developed

2Roscoe Pound, Speech at Brooklyn Law School, Nov. 10, 1928.

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has something to do with it. For more than two centuries Americansociety was preponderately pioneer, rural, and agricultural. Vastlyimportant was the influence of the frontier, even now, hardly passedaway. "A pioneer society does not believe in specialists nor in anorganized profession of lawyers. The pioneer feels himself equal toanything and prefers to believe that he can prosecute, defend andjudge his own law suits. He would leave everyone free to changehis occupation as and when he likes and to take up freely suchoccupations as he chooses. "3 During the post-revolutionary economicdepression, only lawyers seemed to prosper, and the courts were usedlargely to collect debts. Why should that profession organize in anaristocratic British way, when everywhere else in the land of thefree, unfettered individuals fought their own battles single-handed?Statutes throwing the practice of the law wide open to all were oftenthe result. Such conditions did not exactly foster organization, norinspire collective self-consciousness. And, too, the individuals whomthey surrounded had been nourished on traditions which seemed notat variance with the facts in hand. The books which the earlyAmerican lawyer read were imported from England. They werebooks about a period of exploration and individualism comprehendedby the seventeenth and eighteenth centuries. They described acivilization intermediate between the close of a feudal age and therise of an industrial era, and described the lawyer's place in relationto it. Wanting native prophets, the scheme of things seemed fixedand immutable and moved but slowly out of its groove. That theEnglish bar should move much faster did not seem significant. Thatthere, as time passed, the profession should have differentiated itselfinto two classes, each of which, through appropriate agencies, shouldbecome measurably all-inclusive and supreme in its governance,made little impression.4 At most, in this country, but feeble attempts

3rbid.

4The Inns of Court are of great antiquity. They originated as companies orquasi corporations of lawyers who owned and resided in the four Inns of Court.They were patterned after the French College of Advocates and were part ofthe general medimva guild movement. Henry III in 1235 prohibited the studyof law in any other place in London than the Inns of Court. They assumed some-what their present form in the reign of Edward III in 1327. By the time ofHenry VI (c. 1450) there had been established ten lesser Inns of Chancery. In1586 the number of students in both was 1703. Though previously admissibleto the Inns of Court '!attorneys" were expelled therefrom in 1556. By this actionand thereafter, in i6o6, by statute, the barristers succeeded in definitely organiz-ing the English bar, and obtained a monopoly of the most desirable-practice.The organization was independent and self-perpetuating. The lower branchof the profession gradually organized itself similarly. A "Society of Gentlemen

BAR ASSOCIATIONS

were made to achieve similar advantages. Such as were made ex-pressed themselves in the development of the schools of law,5 andthe establishment of a few short-lived inclusive bar associations,which vainly hoped to speak for the whole bar.

With the advent of Jacksonian democracy, the pendulum enteredits ultimate arc. Badges of social distinction were torn away; classdistinctions of any kind were never less popular, and hostility, ratherthan recognition, was accorded groups which sought any privileges,even though they were only privileges and duties that sprang fromcommon membership in a profession. Every franchise was to beenjoyed by all. We find the Southern Literary Messenger, in 1838,saying of bar associations: "They are wrong in principle, betraycompetition, delay professional freedom, degrade the Bar." We findorganized efforts made to drive lawyers from their profession and toprevent the existence of a bar as such. In Kentucky in 1846, a con-stitutional amendment was proposed against the profession, and inIndianh today, there is still a provision in the Constitution safe-guarding the inalienable right of any man to be admitted to the bar,if he shall be of good moral character-a strictly relative qualificationeven in Indiana.

Prior to the revolution, a number of colonial bar associations hadbeen formed. They appear to have invited the support of everymember of the bar in an endeavor to develop collective opinion on

Practisers in the Courts of Law and Equity" was established in 1739. It success-fully defended the right of its members to draft deeds and to do similar workagainst the attempted monopoly of the London Company of Scriveners. Itexisted well into the last century, and was followed in 1825 by a society called"The Law Institution", the name of which was later changed to "The Law Societyof the United Kingdom", and again, in I89I, to "The Incorporated Law Society",as which it now exists. During the nineteenth century Parliament consolidatedall practitioners other than barristers in a single class of "solicitors". Theseare entitled to practice law generally, subject to privileges reserved for barristers.Their admission and discipline is controlled by The Incorporated Law Society.The Council of Legal Education of the Inns of Court and their governors exer-cise similar prerogatives as to the upper branch of the profession. See REED, op.cit. infra note 17, BuLL. No. 15, c. I; Warren, op. cit. infra note 6, c. I; SMALL,op. cit. infra note 7, at 33; Wickersham, Bar Associations, Their History and TheirFunctions (1914) 11 Misc. B. A. REP. 12, Assoc. B. C. of N. Y.

6The School of Judge Reeve of Litchfield, Conn. was established in 1784.Under the Royall Bequest of 1781, the Royall Professorship of Law was estab-lished at Harvard in 1815. A Professorship of Laws was established at Williamand Mary College in I779, at the College of Philadelphia (Univ. of Pa.) in 1790,and at Columbia College in 1793. CENTENNIAL HIsToRY OF THE HARVARD ,LAwSCHOOL (1918) C. I; Warren, op. cit. infra. note 6, c. xiv, REED, Op. Cir. infranote 17, BuLL. No. I5, 128, 423, 431.

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the economic issues at the bottom of the coming struggle, and to haveattempted to control admission to practice. The first of these was a"New York Bar Association", which existed in New York City from,747 to 177o, and an association in New Jersey, which was formed todiscuss the Stamp Act in 1765. There were associations in variouscounties in New England, sometimes comprising several counties,which prescribed precisely the amount of preliminary study, legaland general, to be required for admission to the bar.6 Though thetheory implied an all-inclusive, self-governing bar, control of ad-missions was rapidly taken over by the courts and the legislatures.The sovereign people not alone dictated how wide the door shouldstand open, but actually kept lay members upon the appellate courtsin many states, until well into the nineteenth century. The post-revolutionary conditions above referred to seem not only to havecompletely extinguished these early bar associations, but (with theoutstanding exception of The Law Association of Philadelphia) tohave prevented the formation of any others until after the Civil War.The few feeble associations formed in the south simply illustrate bytheir swift disappearance the force with which the tide ran.7

It will be observed, therefore, that some of the significant charac-teristics of the period between the Revolutionary and Civil Wars

6There was such an association in Massachusetts in 1761; in Essex County inI768; in Boston in 177o-i8o5. See WARREN, A HISTORY OF THE AmERICAN

BAR (1911), where reference is also made to a State Bar Association in NewHampshire as early as 1788, and in Connecticut in 1783. There were also lawclubs such as "The Sodality" in Massachusetts in 1765, and "The Moot" inNew York in 1770-1775.

1The bar was organized in Mississippi in 1825; in Arkansas in 1837; in Louisiana(Association of the Bar of New Orleans) in 1847 and in 1855; in Kentucky in 1846;and in Massachusetts in 1849. See A. J. SMALL, CHECK LIST OF PROCEEDINGS

OF BAR AND ALLIED ASSocIATIONS (1923). None of these associations have leftpermanent records, and none of them appear to have had more than a temporaryexistence. There'appears to have been an attempt to form a "Legal Alliance"in New York City in 1835. Two associations, more in the nature of libraryassociations, were permanent and are active today. These are the Social LawLibrary of Boston organized in 1804, and The New York Law Institute in 1828.The Law Library Company of Philadelphia was organized in 1802. In 1827 itconsolidated with the Associated Members of the Bar of Philadelphia, whichhad been organized in 1821, and its name was changed to The Law Associationof Philadelphia, as which it has existed continuously ever since. It had a com-mittee of censors which paid special attention to delinquent members of the barand reported them to the association, which took action, as an association, intheir cases. Its law library comprises 81,ooo volumes; its membership is 1604.The recent brilliant work of The Law Association of Philadelphia in conductingan investigation into ambulance chasing without recourse to the courts or legis-lature is in line with the best traditions of the early American Bar.

BAR ASSOCIATIONS

were: (i) the development of an individualistic bar in an individual-istic community; (2) unrelated and fitful attempts to organize, oftenunsuccessful, but generally all-inclusive in theory; (3) practically noevidence of selective associations, at least in their purposive aspects;and (4) some claim to control standards of education, admission, anddiscipline, which melted away before a philosophy of demoracy, pureand sovereign. The ablest members of the profession still knew eachother's language, and, as a group, talked loudly and definitely aboutthe major political and economic questions before the nation-forwhich, as a class, they were handsomely paid-but neither they northe bar as a whole made serious attempt to change the philosophyof the day, nor to object to its application to their own body, nomatter what results might ensue.

IV

Of course, results did ensue. The logic of events dictated sundrynew observations. The Civil War indicated that sometimes direc-tional control might well be blended with the unrestrained philosophyof the pioneer and the social democrat. A certain amount of jostlingbecame noticeable within the area reserved for the bar, jostlingwhich had its economic aspects for the leaders, as well as for the rankand file. Presently, we find the presidents of two state associationsrising to protest, almost as soon as they could get forums. In 1879,Mr. Samuel Hand, second President of the New York State BarAssociation, advised that body that "During the last thirty yearsthere have poured into the profession, through the doors thrownopen by the well-meaning, but in many respects, short-sighted,reformers of 1846, large numbers of men, unfit by culture or trainingor character to become incorporated into any learned profession.Hundreds of men without a tincture of scholarship or letters, oldpettifoggers in county or justices' courts, and others, still more rude,have found their way into our ranks. Men are seen in almost allour courts slovenly in dress, uncouth in manners and habits, ignoranteven of the English language, jostling, crowding, vulgarizing theprofession." ' 8 And in the same year, Mr. Moses Strong, first Presidentof the Wisconsin Bar Association, lamented: "The older of you canremember when nothing less than seven years study was requisite toentitle an applicant to earn an examination for admission to the bar.Now how changed! There are practically no prerequisites, of eitherknowledge of laws, or knowledge of anything else, as conditions ofadmission to the bar."9

8(1879) 3 N. Y. ST. B. A. REP. 67.9(1879-85) I Wis. B. A. REP. 13.

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This revulsion against low professional standards, and a like re-vulsion against national, state, and municipal political corruptionwere chief among the forces which gave rise to the new instrumentalitywhich the bar was to forge. This was the selective voluntary barassociation. 'Apparently no attempt to arouse or capitalize a self-consciousness of the whole guild, as such, was thought of, or couldhave been successful if it had been thought of. The philosophy oflaissez faire was to wait forty years to receive its death blow fromanother class of leaders, and from the stimulus of a great worldconflict.

Almost all bar associations, as we know them today, have been or-ganized since 187o. The period from then to 1920 constitutes onedistinct era with characteristics all its own. The first of these newassociations was the Association of the Bar of the City of New York,which was founded in r87o,10 and which was the model for the others.The primary object stated in its constitution, and restated in theothers, was "to maintain the honor and dignity of the profession".In the next eight years, there were organized seven city and eightstate bar associations, in twelve different states." With the ex-ception of Iowa and Wisconsin, where the organization call was tothe whole bar, admission to membership was by invitation, whichwas confined to a selected list, who thereafter constituted a self-perpetuating group--a group which intended to be concentric, butnever coextensive with the whole bar; which had been formed, notfor social intercourse alone, not to furnish library facilities alone, notas militant crusaders alone, but with somewhat of all of these things,subordinated to a great primary objective-to be typical of the bestthe profession had to offer, and to remain so by capitalizing negativevalues, when necessary. Some have thought that all this answersthe description of a self-professed aristocracy of the bar, and themovement was, undoubtedly, strongly influenced by the English

1°In the days of the Tweed Ring. In 1869, 230 members of the New YorkCity bar, headed by W. M. Evarts, signed the call for organization. Immediateattention was given to judicial qualifications. Ledwith was defeated, and McCannand Barnard were impeached and removed. Its Judiciary Committee has alwaysbeen very active; its Grievance Committee considered 1967 complaints last year,at an expense to the association of $24,000. In 1894, it built a fine library andhome on 44th Street. Its last balance sheets showed a surplus of two milliondollars. Its membership has increased as follows: 1872, 6o0; 191o, 2056; 1920,2333; 1929, 3823. This truly magnificent institution is an example of whatlawyers can accomplish as a group when so minded.

"The city associations were Cincinnati, 1872; Cleveland, 1873; St. Louis andChicago, 1874; Memphis and Nashville, 1875; and Boston, 1876. For StateAssociations see Appendix, Table I.

BAR ASSOCIATIONS

theory of governance by, and through the example of, the best.Nevertheless, the early selective bar associations were not foundedto be aristocratic institutions. The very theory of selectivity was tobe questioned more than once before it finally became entrenchedbehind tradition and prestige.

V

In 1878, the American Bar Association was founded. Its organiza-tion was largely the work of a great personality, Simeon E. Baldwin. 12

The basic impulse, it is true, was still the urge to reform and improve,which was in the air everywhere. An organization known as theAmerican Social Science Association had been holding meetings atSaratoga. It had assisted in the foundation of the Civil ServiceReform Association, and had a section devoted to jurisprudence.The need for reforms, national in their scope, was emphasized, andthe idea spread. It took root in Connecticut, where the State BarAssociation, acting upon Judge Baldwin's motion, authorized acommittee to send a letter calling "an informal meeting at Saratoga,New York, on Wednesday morning, August 21, 1878, to considerthe feasibility and expediency of establishing an American BarAssociation". "This," it said, "should consist of a body of delegatesrepresenting the profession in all parts of the country, which shouldmeet annually for a comparison of views and friendly intercourse."Judge Baldwin wrote personally to over 6oo lawyers scatteredthroughout forty states. Seventy-five came, and, once assembled,drafted a constitution, appointed a Committee on Legal Educationand Admission to the Bar, took up the subject of uniform state laws,and immediately appreciated that close relations between the Associ-ation and the bar associations of the several states was a desirablething. They instructedthe Executive Committee to report measuresto bring that about. At the close of the first meeting the membershipwas listed as 291, with 29 states represented.

The American Bar Association is an organization consisting en-tirely of individual members. It has no structural connection withstate or local associations and does its work through its committees.Of late years, however, it has established Sections which, in effect,are separately organized bodies." These represent, today, its nearest

"See F. Rawle, How the Association Was Organized (1928) 14 A. B. A. J. 375;J. G. Rogers, Fifty Years of the American Bar Association (1928) I4 A. B. A. J.521.

"Nine in all: Comparative Law, Bar Association Delegates, Criminal Law,Judicial, Legal Education, Mineral Law, Uniform State Laws, Patent Law, andPublic Utility Law. In addition, there are 16 Standing Committees, and about a

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approach to the ideal of its founder: that "it should consist of a bodyof delegates representing the profession in all parts of the country".For many years the Association fought hard to retain its selectivequality, and not to forget that a relatively small homogeneous groupcould get the most done.

For the first decade after its organization, the American BarAssociation concerned itself with the advancement of the science ofjurisprudence and the promotion of uniform legislation, professedobjects of its constitution. Its membership soon attained 5oo, butremained at approximately that figure for some years.14 In additionto a bitter fight on codification in 1885, the problem of the relationbetween the Association and other bar associations commenced againto be troublesome. The organization of the medical profession dis-played continuously the operation of a theory diametrically opposedto the theory of a selective association. The American MedicalAssociation, as early as 1847, had been organized along national linesby the integration of local units."6 On that occasion, 250 delegatesrepresented over forty medical societies, and 28 medical colleges.The wisdom of applying such a method to bar associations was firstdiscussed upon the occasion of the formation of the New York StateBar Association, in 1876. Inasmuch, however, as no local associa-tions of consequence then existed, and as the opposite theory was

dozen Special Committees. The Executive Committee, which has most of theburdens and power, numbers 15. The General Council, one from each state, iselected by caucus on the first day of the annual meeting by those present fromeach state. It meets once and nominates the Association's officers. There is aVice-President and Local Council of four for each state.

14See Appendix, Table II.'6In 18o6, the New York State Medical Society was chartered to be composed

of delegates from each county society (REED, op. cit. infra note 17, BULL. No. 15).Today it has enrolled 96,ooo physicians out of I5440o0 in the country (61t%).Each must belong to his local county unit and pay approximately $20 in dues.About 4o,ooo are fellows who pay $30. It is governed by a House of Delegatesnumbering 150, who are elected for two year terms by their State Associations.Of the general membership, about 8ooo usually attend the annual meetings.These listen to lectures and take part in discussion sections. Of the other pro-fessions, the clergy are not organized; the American Association of UniversityProfessors (1914) has 6896 enrolled (18%); the engineers have four nationalassociations: American Institute of Electrical Engineers (1884), American Societyof Civil Engineers (1852), American Society of Mechanical Engineers (1881),and American Institute of Mining and Metallurgical Engineering (1871).Total enrollment 57,000 (35%). The medical and engineering societies are inpractical control of professional rating and discipline. Each has a substantialbuilding as national headquarters. In contrast the legal profession has an en-rollment of not over 20% and has no headquarters. See J. G. Rogers, TheDemand for Reorganization in the American Bar (1930) i6 A. B. A. J. 15.

398

BAR ASSOCIATIONS

distinctly in the ascendency, the New York State Association re-jected the plan, and organized itself on invitation lines. The Ameri-can Bar Association, however, did not entirely dismiss the idea. In1879, it extended full privileges of membership, at any annual meeting,to any three delegates that any state association might send.16 Asno real efforts were made to develop this notion, it came to nothing,and for the same reason a temporary recoil resulted in the formation,on representative lines, of the short-lived National Bar Association,in 1887. Mr. J. A. Broadhead of Missouri, the first President of theAmerican Bar Association, and now in a somewhat discordant mood,was elected President, and about half of the 38 associations whichprofessed an interest, sent delegates to the first meeting. After a fewmore meetings, the Association disappeared, holding a last banquetin 189i at Washington, when, as Mr. Reed says, "the guests wereregaled with a dream that Congress might appropriate funds for abuilding.'

717

Nevertheless, the episode caused some stir in the American BarAssociation. For a time, it paid considerable attention to localdelegates, but with the New York and Boston City Bar Associationsdefinitely cold toward any project of federation, there was littlereason to anticipate structural changes in the larger body. Finally,in 1916, the American Bar Association established its Section ofBar Association Delegates, which holds a conference just prior to theannual meeting.' s The attendance at these conferences has been

15Also, to two delegates from any city or county association in states where nostate association existed. The plan was abandoned in I919. The number ofjurisdictions entitled to such representation rose from 40 in i89o to 49 in x916.Those represented at meetings: from 12 to 32.

17See A. Z. REED, TRAINING FOR THE PUBLIC PROFESSION OF THE LAW, BULL.No. i5 (Carnegie Foundation for the Advancement of Teaching, 1921) c. xix,xx; A. Z. REED, PRESENT-DAY LAW SCHOOLS IN THE UNITED STATES AND

CANADA, BULL. No. 21 (Carnegie Foundation for the Advancement of Teaching,1928), and sumps. Acknowledgment is here made to M~r. Reed for much valuableinformation contained in these works.

'8Elihu Root -was then President. Foreseeing insuperable objection to anyplan actually to federalize the association, he devised the plan for a Section whichshould reflect local opinion, and consist of delegates chosen by local associations.The organization meeting took place just before the annual meeting at Chicago,Aug. 28, I916. Fifty-four state and local associations sent delegates. In additionto the dstablishment of the Conference, and largely through Mr. Root's efforts,the Constitution was amended so as to provide for referenda to all the memberson important questions of policy (Art. XIII). It has never been employed.Also, a provision was inserted making the President of each State Association,ex officio, an additional member of the General Council [(i916) 4 A. B.A. REp.94]. Though 37 state associations accepted the plan, the provision was dropped

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consistently of some size, frequently running over ioo delegates, butit must be remembered that even in 1916 there were state and localassociations in practically every state, and a total of more than 650bar associations.

Thus, in the first forty years of the Association's existence, we seeno sign of the old idea of an all-inclusive bar, which through thedevice of incorporation and compulsory membership was to reassertitself after the late war; we see no real or successful attempts on thepart of the profession to organize itself along federated lines; and wesee the principle of selective independent associations still supreme.It should not be forgotten that during this period, the selectiveassociations accomplished many things of great value to the profession.They have improved the standard of admission to practice in nearlyevery state; they have provided forums for the discussion of neededchanges in the field of procedure and substantive law, and still do.They have exercised a beneficial influence in the shaping of a certainamount of legislation, and have promoted the work of the Com-missioners of Uniform State Laws. Though they have frequentlywithheld eligibility from the young lawyer of less than three yearsstanding, 9 they have suggested to him that membership was worthqualifying for, and they have continuously endeavored, through theadoption of Canons of Ethics,20 and otherwise, to elevate the standardsof the whole profession.

VI

When, in 1878, the American Bar Association was formed, therewere practically no county associations in existence. Most of theolder ones now effectively functioning began in the eighties.2' Though,

in 1919. In 1923, President J. W. Davis, in his annual address, recommendedfederation with state associations, and appointed a Special Committee to devisea plan for cooperation. It proposed that the General Council should be entirelyselected by state associations. The plan was frustrated on the floor of the meeting.In 1924, President R. E. L. Saner attached to his annual address a "Memorandumon National Federalization of the Bar" [(1924) 49 A. B. A. REP. 149, 152], butnothing resulted. However, it is probably correct to say that the tide has turnedsince 1916. At Memphis, in October 1929, the Executive Committee, the GeneralCouncil, and the Conference of Bar Association Delegates each appointed acommittee to devise some plan for reorganization. See Need for Reorganizationin the American Bar (1930) 13 J. AM. JuD. Soc. 142.

'9This barrier is rapidly disappearing. It was dropped by the American BarAssociation in 1928.

20By the American Bar Association in 19o8; by the New York State BarAssociation in 19o9.

"1The first appears to have been The Allegheny County Bar Association (Pa.),chartered Feb. 28, 1870.

BAR ASSOCIATIONS

as has been shown, the movement, once started, made rapid strides,there was a period, roughly, during the nineties, when the careers ofmost local associations were, indeed, desultory,22 when they had

.Jlittle or no purpose, narrow objectives, and no reasonable hope of anoutlet for their energies through union with stronger bodies, eitherstate or national. It remained until a later day for their very multi-plication to implant in them some glimmering of a self-consciousnessthat might engender activity. The evidence of conditions duringthe nineties produces for us a picture of local associations enduringlong winters of stagnation, tempered only by occasional springs ofdelight. In 1895, two gentlemen published views to this effect-Mr. Alexander Simpson, Jr., addressing the Pennsylvania BarAssociation, and Mr. Ralph Stone, the New York State Bar Associa-tion. Mr. Simpson said: "Most of our local associations appear todo little, except give annual banquets to the Justices of the SupremeCourt, or to some incoming or outgoing judge of a local court, atwhich fulsome eulogy and wit of a local flavor absorb the speech-making. At times, it is true, papers have been read at meetings ofthe Association; in aggravated cases action has been taken lookingto the disbarment of guilty practitioners; and when, during legislativesessions, some venturesome reformer has endeavored to obtain whathe considered needed changes, the dry bones have stirred, andresolutions, accompanied by addresses more or less relevant, havebeen duly passed and forwarded to the proper legislative committee,to be followed, in turn, by a great calm, lasting until the next sessionof the legislature. '"2 Mr. Stone seems to have been no less aroused.He said: "There are now 26 state associations, and their averagemembership is from 100 to 200. Almost all of them have exerted agood influence by bringing the lawyers together and cultivating abrotherhood of the bar, but they have generally proved an absolutefailure insofar as any practical good is concerned. The result isthat the associations are not representative of the Bar of the state.124

22The Bar Association of Erie County (N. Y.), when organized in 1887, had

over 200 members. It appears to have held but one annual meeting until 19oo.Failing a quorum for an attempted meeting in 19oo, it sent out the followingnotice: "The Association has done little in 13 years, except to pass memorialresolutions, and get into debt for picnics. The members, it is hoped, will demon-strate by their presence at the adjourned meeting, that there is a sentiment atthe bar in favor of an Association with some purpose besides a desire to eat,drink, and be merry, and to eulogize the dead."

21Simpson, The Local Bar Association (1895) 1 PA. B. A. REP. x4o.24Stone, The Mission of State Bar Associations (1895) 18 N. Y. ST. B. A. REP.

I48.

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The conditions adverted to by these gentlemen improved somewhatduring the first decade of this century, which saw, in i9o8, thefoundation of the New York County Lawyers Association.2s It hasbeen a success from the start and has done notable work through itsCommittee on Professional Ethics, and in the prosecution of personsand corporations unlawfully practicing law. There is abundantfurther evidence that the activities of local associations have increasedwith the increase of their numbers. Many of them have entered thefield of politics and have elected candidates to the bench, whom theirjudiciary committees endorsed. 6 Others have raised large sums ofmoney by popular subscription to entertain the American BarAssociation, or to establish permanent headquarters. 27 It indeedseems surprising that organizations given to charging dues of about$5.00 could perform any such feats. Perhaps the success with whichthey have done so indicates that certain elements of strength in theprofession had been overlooked. It might even be possible that thefailure of state and national organizations to provide some meansfor the smaller bodies to become articulate had allowed much valu-able energy to run away unused.

Unused in the sense that it has not been coordinated. The chieffailure of the selective associations to serve and represent the wholeprofession has been in the field of state organization, in the denselypopulated metropolitan areas, and to a certain extent nationally.2 8

2It has just raised nearly a million dollars for its building. Its membership isover 6200, and is open to any practicing lawyer in the county. Its dues are but$15, and it has no entrance fee. In spite of this reckless democracy, it hasconsistently elected its officers from the same type of leaders of the bar whomade the Association of the Bar of the City of New York so great a success.

26The Cleveland, Chicago, St. Louis, Los Angeles, Cincinnati, Detroit, Omaha,and Oregon Associations have been thus successful. See (I93O) I6 A. B. A. J. 57;(1929) 12 J. Am. JuD. Soc. 178; (193o) 13 ibid. 158.

27Local associations, such as of Denver, Buffalo, Seattle, and Memphis, supplymost of the funds when host to the American Bar Association. The cost usuallyexceeds $20,000. In recent years many projects for permanent headquarters forlocal associations have been launched, and several perfected. In Buffalo, $5o,oo0was raised in a short time for this purpose. See also, supra note 25.

28The energy escaped because the lawyers did not join the associations. InNew York City there are nearly 25,000 lawyers. Local membership is as follows:Association of Bar, 3ooo; New York County Association, 6200; Bronx, 36o;Brooklyn, 675; Kings, 125; Queens, 31o; Richmond, I5o. Total, ex duplications,about 33%. In Philadelphia, 40% out of 4ooo; in Boston, 40% out of 4000.Less than i% of American lawyers belonged to the national association up to

90oo; less than 20% belong now. The tremendous difficulty confronting mem-bership committee drives is illustrated by the fact that the American Bar Associ-ation sent out 28,000 letters of invitation in a year to make a net gain of 1613

BAR ASSOCIATIONS

Though in the majority of counties in the country there are as yetno local associations, the number in which there are has of lateyears grown to a very respectable total.29 Most county associations-even the large New York County Lawyers Association-have, infact, been postulated on the theory of an all-inclusive, informallyincorporated bar. In the rural counties nearly every practicinglawyer joins his local association (though often the number eligiblemay be as low as a score), because he finds it of practical benefit todo so. However confined to matters of small importance the countybar may be, it has little difficulty in imposing its collective will withinits own province. The generality of the bar has likewise joined itsassociations in the cities. 0 Here again, the organization may beloose, and opportunities for service and progress may have beenwoefully neglected. Yet, taking account of the number of admittedlawyers who do not practice, the profession has displayed loyaltyrather than ostracism toward its organization, and the leaders havenot shown fear of loss of prestige and power because of size alone.

Up to 1916, the state associations, on the other hand, had donenothing to unify or integrate, on state-wide lines, either all of theindividuals at the bar, or the existing units at hand. It is for thisreason that the energy ran away unused. The selective associationscalled loudly for recruits, and, in alleging eagerness that every lawyerin good standing seek membership in them, paid lip service to theprinciple of a community of ideals and effort, but took no steps toprovide machinery for cooperation, except on their terms. Thusthey weakened their own prestige and efficiency, if not absolutely,at least in relation to what it might have become. The implicationsof their failure were not lost on the fourth estate, which simply stayed

members [(1928) 53 A. B. A. RaP. 94, 296]. But there were approximatelyio,ooo persons admitted to practice during the same period. Membership involuntary state associations as reported to the Conference of Bar AssociationDelegates ranges from 70% to 85% in Delaware, Iowa, and Vermont; averagesabout 5o% in North Carolina, Rhode Island, Ohio, South Carolina, Georgia,Montana, Texas, and Kansas; and declines below 30% in the other states, in-cluding i3 states not reporting, where, presumably, activity is at a low ebb.New York state shows membership of 16% out of 3o,ooo. The seven states withfederations average about 66%, with Washington, highly organized, 85%. Forfigures for 1923 see (1924) 49 A. B. A. REP. 783.

2 90ut of approximately 3000 counties, there are 1165 local associations."0For example: Cleveland with 3000 lawyers has a membership of 60%; Los

Angeles with 32oo, 66%; Rochester with 500, 8o%; Buffalo with 5oo, 66%;Pittsburgh with i8oo, 4o%; San Francisco with 2500, 40%; Chicago with 780o,55%. Associations in most cities of this class have their own headquarters andlibrary.

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outside, taking care, however, to retain control of the legislature,and thus impose a splendid negativism on projects and reformsconcerning which it had not been consulted in advance.3 1 But asfacilities for communication and travel increased and county linesbegan to disappear, the average lawyer began to think in state-wideand national terms, and began to lose some of his individualism inspite of himself. He began to give some attention to the idea of abar, which he saw the public was coming to regard as a fiction. Hebegan to wonder whether it was not possible, after all, to organizein some way that did not involve distant and expensive annualjourneys to assemblages whose programs were apparently sure tosucceed, whether he came or not. The logic of his argument compelledthe conservative wing in the selective associations to assert thatcomplete organization is an excellent thing when applied to the ruralor municipal bar, but is unworkable and dangerous when applied tothe state or national bar. The inference was that the little fellowswere harmless, not to say commendable, when kept preoccupied withstrictly local matters of small consequence, but would constitute anunwieldy mass, discordant,12 and unresponsive to real leadership ifever allowed true representation in state or national forums. Tothe majority this inference never recommended itself.

VII

And so, despite all arguments in favor of stability and traditionin a best of all possible worlds, the changing conditions referred togave birth to new ideas and made new movements inevitable. Thechief of these was the idea of an incorporated bar. Since the failureof the selective associations was thought to be because of the dis-affection of great numbers of the profession, the obvious and quickestremedy seemed to be to bring about the exact opposite state ofaffairs, and that in the approved American fashion, by legislative fiat.

The theory of an all-inclusive state bar was first discussed at certainstate association meetings in the west commencing in 1914.- Dis-cussion continued in the pages of the Journal of the AmericanJudicature Society, and in i919 the principle involved was considered

311n New York, the legislature failed to pass x6 out of 18 bills sponsored by theAssociation of the Bar of the City of N. Y. during the last three years. (1928)

YR. BK. A. B. C. N. Y. 227.32See dissent, Rep. Com. on Organization of the Bar, to New York State Bar

Association, 1930.33At state bar meetings, Wisconsin, 1914; Nebraska, 1915; California, 1917.

A bill introduced in California in 1921 failed to pass; one passed in 1925 wasvetoed. The same bill became a law July 29, 1927.

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by the Conference of Bar Association Delegates of the AmericanBar Association.34 The idea, once started, attracted attentionrapidly. Today, the bar is incorporated by statute in seven states.3 5

The fierce opposition which it aroused in the east" when it finallycame under close scrutiny indicates, however, the degree to whichits most ardent protagonists overlooked the real factors with whichthey had to deal. These are the vast amount of propaganda yetnecessary before the bar as a whole can possibly assume its obliga-tions, the lingering individualism and conservatism of the averagelawyer, the tremendous subconscious hostility which necessarilyexists on the part of those who have worked and given to build upand lead the selective associations, 7 and a genuine disparity ofconditions throughout the country.

34The Conference appointed a committee which reported favorably in 1920.

Delegates present from the three largest New York Associations registeredapproval.

35North Dakota (in 1921, with 6oo lawyers); Idaho (1923,625); Alabama (1924,

16oo); New Mexico (1925); California (1927, iOOO); Nevada (1928); andOklahoma (1929, 1200). States reporting favorable action on incorporation assoon likely are: Arizona, Georgia, Kentucky, Louisiana, Montana, Texas, andVirginia.

26In 1922, the New York State Bar Association, after a speech by Judge C. N.Goodwin, instructed a committee to investigate. In 1924 and 1925 the Associ-ation recorded itself in favor of the principle involved, and at its instruction the"Gibbs Bill" was drafted [printed in (1926) 48 N. Y. ST. B. A. REP. 80; (1927)49 ibid. 299]. It was similar to the California act (infra note 38), but in additionprovided that the "State Bar" could nominate candidates for any judicial office,that it could assimilate the property of any existing associations after appropriateaffirmative action on their part, and that two governors should be elected fromeach of 9 districts-none at large. This gave the two metropolitan districts with75% of the lawyers only 4 delegates. This hastily drawn bill hurt the move-ment in New York. In 1926, the New York City Associations by a vote of IO to Iinstructed their delegates to the Special Conference of Bar Association Delegates,held at Washington that year, negatively. That meeting marked the limit ofthe movement in its national aspects [see (1926) 12 A. B. A. J. 326]. The callfor the meeting, over Mr. Hughes's signature, had stated that the movement forstatutory organization was becoming nation-wide, and that the time had comefor a union of forces, discussion, plans, and a demonstration that it was not localbut national. But any hope for definition of a basic or national formula wasfrustrated by the adoption of a compromise resolution declaring that the questionwas fundamentally one to be determined by each state. In 1927, the New YorkState Association definitely repudiated the whole idea. The up-state local associ-ations, as well as the leaders and metropolitan bar, were almost unanimouslyagainst it.

3 7In New York, the state and metropolitan associations had long records ofpower and prestige. They had considerable tangible assets which had beenslowly and painfully acquired. They were surrounded by thousands of lawyerswho, by birth and background, were foreign to their ways, their terminology, and

4o6 CORNELL LAW QUARTERLY

The outstanding features of an incorporated state bar are these:every lawyer who practices is a member; in form it is a representative

presumably to their ideals and standards. Fear inspired a conservative attitude.The argument, in effect, was that no hope existed, and that by attempting toregenerate the multitude the associations would damage themselves and ac-complish nothing. In the debates, the temperament and philosophy of theindividual leaders asserted themselves. In the beginning the issue seemed open;in the end caution prevailed. Mr. Root said: "[T]he bar of the state ought notto be willing to permit one local association to do the tremendous amount ofdisciplinary work necessary, and pay the expense of it, while the bar itself doesnothing. Efforts to get the bar incorporated should receive universal support."Mr. Hughes: "The vision we have ... of lawyers together feeling that they aremembers of a profession, feeling that the interests of'the profession are not theinterests of a minority, but are the interests of all, feeling a duty to establishand maintain standards and willing to discuss with anybody the way to do it,but intent on getting it done.., don't let that vision fail." Mr. Conboy: "Diffi-cult as the obstacles in the way may be, some method must be devised to removethem, if the bar is to function as an organized body to accomplish its purpose.Voluntary associations will not produce an organized bar." Conboy, The Or-ganization of the Bar (1923) 46 N. Y. ST. B. A. REP. 266. See also, J. H. Cohen,The National Call for the Organization of an All-Inclusive Bar (1926) 4 N. Y. L.REV. 80, 135.

On the other hand, Mr. Louis Marshall, at the Washington conference, saidthat in practice the whole bar could never, through incorporation, be induced todischarge its duties as well as it discharges them today: "Instead of keeping upour standards, we [would be] lowering our standards to the weakest link in thechain. We [would be] trying a useless experiment, and so far as the State ofNew York is concerned, we would destroy that which has been built up byvoluntary effort, and substitute, in place of it, chaos." Mr. W. D. Guthrie borethe leadership in opposition. With great candor he struck at the heart of thephilosophy involved. First he quoted Mr. Hughes as having said, "[Some are]profoundly concerned by the influx of mixed elements in the legal profession dueto immigration, and by the great numbers of those who are admitted to practiseat the bar. It is said that the standards of the bar are already in peril of beingdissipated by numbers. Instead of that being a reason to oppose organization ofthe entire bar, it is a fundamental ground for urging that organization." [(1927)49 N. Y. ST. B. A. REP. 91 ]. Mr. Guthrie then replied: "But I am convincedthat the truth is otherwise, and that this menace cannot be met or removed byany such formulas as are now proposed. We cannot create a new spirit and senti-ment among these undesirable members by merely enacting a program devisedfor the purpose and compulsorily grouping them with us. We who are responsiblefor the future destiny of the profession are not justified in running the risk involvedin compulsorily incorporating into a state organization thousands of men andwomen who have never shown the slightest... professional pride, or any interestwhatever in professional organization." In New York State, at the time, aboutthree lawyers out of four did not belong to any association. Nearly 15,000 ofthese lived in the metropolis and shared the distinction thus conferred uponthem. Continuing, Mr. Guthrie said: "The existing voluntary bar associationsare generally functioning with satisfaction and usefulness . . .[T]hey are com-petent to perform all the duties and render all the service, public or professional,

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organization, due consideration being given to geography; it hascontrol over admission and discipline; it yields adequate annualrevenue without undue burden on anyone; and it places responsibilitysquarely on the whole profession. 8 As an intellectual matter, it isdifficult to raise any valid objections to the theory of an incorporatedbar. There are, however, many practical difficulties. In the firstplace, it implies an homogeneous bar-at least one made up of units,all of whom subscribe to the duty of interest and effort in publicaffairs and relations, and who are ready more than passively to followenlightened leadership. In short, it implies a bar, each member ofwhich is willing to work for his profession. For the most part, sucha bar does not exist, as yet. Furthermore, the tendency to introducepolitics into the profession cannot be denied. A highly organizedbody places great power in the hands of its elected governors, who,instead of leading, can debase it, dragging in their train the finestelements of the whole. The Anglo-Saxon bar has always, perhapsmore than any other profession, dedicated itself to holding abstractideals in trust. The leaders of the selective associations have been

which it has so far been suggested might be rendered by any compulsory all-inclusive organization. We, who are a voluntary body of lawyers, have beendrawn together by the fact that we are interested in all that is best and highestand noblest in our great profession. It is because we are thus, because of ourservices and our interest, that we are representative, not so much of the wholeBar as representative of the elite of the Bar, of the best part of the Bar. You willaccomplish nothing by what is called democratizing the Bar, pulling down theBar to the level of the great majority an& destroying that incentive to workwhich now inspires most of us in an Association of this kind." (1927) 49 N. Y.ST. B. A. REP. 273; Report as President to Association of Bar of City of NewYork on Gibbs Bill, April, 1926.

38For example: The State Bar of California is divided into eleven (congressional)districts, each of which elects a governor, and there are four governors at large.This board meets each month in a different district, generally with a local associ-ation. The whole bar meets once in a year. It has headquarters in San Franciscoand Los Angeles. In effect, it controls standards of admission and discipline, thelatter function having been removed from the province of local associations.Last year its Grievance Committee considered 952 complaints. Thousands ofits members, at their own request, have been assigned to the various sectionsthat are organic parts of the whole, such as Courts and Judicial Officers,Professional Conduct and Regulatory Commissions. Before being brought upat the annual meeting, questions pertinent to these subjects are debated by thesections, and something of a cross section of the opinion of the whole bar aboutthem is thus elucidated. The annual registration fee is $5.oo. California has57 counties and 46 local associations, which have not been disturbed. The firstand second state associations organized in 1889 and 19Ol were moribund. Thei909 association had I5oo members out of ii,ooo lawyers upon incorporationin 1927. See (1929) 12 J. Am. Ju. Soc. 174.

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faithful to this trust. So precious has it been in their eyes, that theyhave imposed the most rigid tests on any who would bear the stand-ard, and have feared the slightest compromise. Mr. Joseph Webbhas said that "The State Bar of California is endeavoring to mobilize,organize and direct the entire intellectual and moral resources of thelegal profession of their state; a tremendous task, and one that mayrequire years to accomplish."39 This statement epitomizes theproblem.

In the end aspiration usually overcomes conservatism, but in themeantime much damage can be done by applying too legalistic arationale. The incorporated bar will come when the profession isready for it, when it has, if ever it can, raised itself by its boot straps.The formula of an incorporated bar will fail, as it has thus far failed,wherever force is attempted in its application. The five year battlein New York illustrates perfectly how impossible the project is when

3 9The history of the movement in California illustrates this. Certain judgeswere charged with taking bribes, but the association failed in efforts to havethem disbarred and failed in an attempt to get a law passed enabling it tosubpoena witnesses and take testimony when investigating such charges. Itlikewise failed to stop certain trust companies from advertising for legal business,but obtained a law directed against unlawful practice. The banks thereuponsubmitted the law to the electorate, which showed its lack of confidence in theprofession by recalling the law. "After this overhwehning defeat," says Mr.Webb, "there gathered in San Francisco a few men devoted to the ideals of theprofession. One and all agreed that the bar of California had no organizationworthy of a name. Shortly after this meeting a Special Committee was appointedto investigate conditions and make a report to the 1923 State convention. Im-mediately after its appointment this Committee began corresponding with fourteenother state bar associations, which had given the matter consideration. Reportsreceived showed that similar conditions prevailed in other states; they had thesame difficulties with reference to membership; they could not successfully copewith disciplinary matters; the same lack of confidence on the part of the publicwas evident, and one of the remedies under consideration was the all-inclusiveform of organization. As a result thereof, the Special Committee prepared a billdrafted after the model act and submitted itto the 1923 convention with a reportstrongly urging approval of the plan. By a unanimous vote the bill was endorsed,and the Committee authorized to conduct a vigorous campaign in behalf of same.We appeared before every local bar association and discussed the situation fullyand frankly; also before chambers of commerce and many other civic organiza-tions. All members of the Legislature received a copy of the proposed measure,together with an explanation of its history and purpose. To all meetings weextended a cordial invitation to representatives of the local press and membersof the Legislature. Our efforts were successful, and the measure passed the 1925Legislature by an overwhelming vote, but it did not receive the Governor'ssignature." In 1927 the same bill, re-introduced, became a law. See Genesisand Achievements of Self-Governing Bar by Joseph J. Webb, First President, StateBar of California.

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the terrain shows huge chasms already existing between rural andmetropolitan bars, and even greater ones within a metropolitan baritself.

Though the incorporated bar acts make provision for preservingthe integrity and the property of existing voluntary associations, thebasic concept itself excludes them. Assurance against confiscation iscold comfort at the price of surrender of actual leadership and all theother precious imponderables. As a matter of 'psychology, this diffi-culty has made no little trouble. The selective associations, whatevertheir deficiencies, are intrinsicilly agencies of great value, of whichthe state bar acts take but scant account. They are at least vehiclesthrough which self-sacrificing, energetic individuals can work. Theyare voluntary, not alone as to membership, but as to effort. It hasbeen well argued that the legal profession in this country mustalways have a super-bar, alert, energetic, and courageous for ideals.40

This group the selective associations recruit, and it is significant tonote that they, came into being at a time when the profession hadlost all control over admissions. In that dark hour they at leastpreserved a set of qualifications of great value within their limitedjurisdiction. Nevertheless, the idea of an incorporated bar has madesubstantial progress. There seems but little merit in the contentionthat it is inherently unsound, and little doubt that, when the wholeprofession is ready for it, it will emerge triumphant.

VIII

When Judge Baldwin organized the American Bar Association, heindicated that he thought it should be federal in structure. The ideaof a federated bar has never died out, and since 1916 has made gieatprogress. To Americans, it presents a familiar picture, and as con-ditions exist today, it offers an acceptable compromise betweentheories and demands otherwise largely divergent. It has beenpractically perfected in Pennsylvania,41 has been in operation for

40REED, op. cit. supra note 17, BULL. No. 21, at 237.UMembership in the association consists of individual members and county

bar association members. The state has about sixty counties, which are dividedinto eight zones, ranging from five to eleven counties. Each of the eight zones isentitled to one Vice-President. and three members of the Executive Committeeelected at an annual meeting, and they comprise the entire committee. Individualmembers pay $8.oo dues, and affiliated county associations such dues as thedelegates prescribe. The State Association is highly organized and has a varietyof active committees reporting directly to it. The Vice-President and officers ofthe State Association cooperate directly in bar associational activities in theirrespective zones. At annual meetings all questions voted upon are first put tothe State Association members present, and if voted down by them are lost.

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some years in Washington and half a dozen other states,4 and isdeveloping rapidly, in a variant form, in New York.4 It avoids

If carried by the general membership, any question is next voted upon by the.delegates of county associations, and cannot be considered to have beencarried without their approval, providing at least thirty votes are cast againstany resolution. Each affiliated county association is represented by two delegates.By-laws, adopted July, 1928.

42Illinois, Minnesota, Oregon, South Dakota, Washington, Wisconsin, and toa certain extent, in a few other states. In some affiliation is optional; in somemembership in the local involves membership in the state association. Federa-tion is generally not as complete as in Pennsylvania. Illinois has IO,8OO lawyersof whom 78oo reside in Chicago. Thirty-eight hundred are members of the stateassociation. Since 1915, a plan of federation has been in operation. One hundredsixteen local associations, county and city (including the large Chicago BarAssociation with 42oo members) comprise seven Federations, averaging 17 mem-bers, and organized according to Judicial Districts. Each holds its own annualmeeting in thefall with an attendance of about 65. Federations have no individ-ual members. Each local is represented by delegates, but participation is infact general. Each Federation elects one member of the Board of Governorsof the state association, which consists of 2o governors in all. The state associa-tion is not on a delegate basis, though for several years there has been a movementin this direction. (1929) ANN. REP. ILL. ST. B. A. 10, 237, 321. The states ofKansas, Maryland and Tennessee report federation impending. See (1926)

12 A. B. A. J. 326, and 8TH, 9TH, and iOTH REP. OF COm. ON ST. BAR ORG. TOCoNF. OF BAR Ass'N DELEGTAES, A. B. A., 1927--29. For model Constitutionsand Articles of Association see 8TH REP.; also (1926) io J. Am. JuD. Soc. 23.

"The Federation of Bar Associations of Western New York was started quiteindependently of the state association, under the auspices of the Bar Associationof Erie County at Buffalo in June, 1926. It is not an association of individuals,but an association of I8 local bar associations of I6 counties. It has its own officersand committes (Ethics; Admissions and Information) and has no structuralconnection with the state body. A Council consisting of one representative fromeach local meets twice during the winter and functions as an Executive Commit-tee. Attendance at annual meetings averages about 4oo lawyers out of 2500 inthe two judicial districts, and exceeds state meetings in size. Participation isopen to all, but voting may be restricted to the two delegates from each localon demand. For Constitution and Annual Program see (1929) 52 N. Y. ST. B. A.REP. 97. In 1929, a similar federation was organized in the Sixth Judicial Dis-trict. Federation plans are under way in three other districts. The Committeeon Organization of the Bar (Messrs. W. D. Guthrie and A. McCulloh dissenting)reported favorably at the State Association annual meetings in 1928, 1929, andI93O, and attempted to induce it to take the lead in organizing such federations,and to establish contacts with them, at least by giving them representationon its Executive Committee. In 1928 and 1929 the Association went on recordfavoring the principle involved only. In 193o, after a vigorous debate, and by alarge majority, the Committee on Amendments was instructed to report somemethod for giving federations representation. No attempt has been made toput the State Association itself on a delegate basis. Debates and reports appearin (1928-30) 51-3 N. Y. ST. B. A. REPs.

BAR ASSOCIATIONS

many of the problems which plague the incorporated bar, buildingfrom the ground up, and seeking to capitalize the enthusiasm andpublic spirit of existing units. True, it makes the unproved assertionthat the average comprehensive group, because of its greater objec-tivity, is, per se, better fitted to assume the burden of solving theprofession's internal problems and of speaking for it to the laity,than is the restricted typical group, in spite of the latter's superiordefinition of thought. True, also, it must finally demonstrate thatit does not entirely rest upon the enthusiastic effort of a few indi-viduals, and must prove that the minor units of which it is composedwill not presently fall apart, to slumber peacefully, as they have sooften done in the past. The evidence, however, seems to show thatthis danger is not too great. Federations provide what the rural andcity bars want: a regional forum of their own; Grievance and EthicsCommittees neither coldly state-wide, nor impotently local; annualmeetings which can be reached by automobile; and, above all,preservation of the integrity of local opinion within the profession.In the last analysis, the American lawyer still decides questions forhimself; it will probably be a long time before he is ready to acceptthe decisions of relatively small annual state assemblages as bindingupon him, and as necessarily wholly appropriate for state-wide applica-tion. It may be that the federated bar, in the long view, will proveto have been but a passing phase in the hoped-for renaissance of ourprofession. But, at least, the flexibility of the plan provides forgrowth where there is spirit and will to grow, and avoids those endur-ing bitternesses always generated when one lawyer is asked to takefor a bed-fellow another whom he does not like, or perhaps evenrespect.

IX

The discussion and experimentation which has gone on during thelast two decades as to which, in the abstract, is the best method fororganizing the bar is important and has undoubtedly served usefulends. To a certain extent, however, it has also served to distractattention from a still more important consideration. This is thepressing necessity that the profession appreciate that it has problemsas a whole which are distinct from the problems of the associationsas they have seen them. The problems of the profession as a wholecannot be solved by individuals, nor by groups of individuals, inter-mittently, or even continuously, active. They can only be solvedby the profession as a whole with the cooperation of all its members.That is why their solution demands measurably complete organiza-tion. The test as to what form that organization should take in any

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particular state or locality is pragmatic. The answer does not affectthe fundamental necessity for action.

To illustrate it is only necessary to mention the present failure ofthe bar to discharge its collective responsibility to the public, orproperly to assimilate its new members. We get into the habit ofthinking that these two problems, for instance, can and will besolved by existing organizations. But of this there is no assurance.Too generally the associations have been preoccupied with their ownproblems and in safeguarding their prestige. It is as though they,the cavalry, had for fifty years been executing brilliant feats ofleadership without bothering to notice that the infantry had failedto come up. Meanwhile, the bar, as a whole, left to take care ofitself, seems to have become quite unconscious that it has eitherproblems or collective responsibility.

Has the bar any collective responsibility? Is it true that the laityhas always expected and demanded from it a leadership in mouldingpublic opinion, that it has looked up to the profession as learned,not alone in legal lore, but in the art of government, in politicalphilosophy, and in the intricate, never-ending process of domesticand international economic and social readjustment?

In the past, the best elements in the bar formed a compact, vig-orous, and articulate group, which assumed a definite attitude uponthe major questions of the day. As distinct from the rest of the peoplethey interchanged analyses, ideas, and plans, until decisions thatrepresented collective conclusions were arrived at. In the littlescattered, colonial general assemblies, it was the lawyers who framedthe economic issues with England, and when they had been framed,the people accepted leadership and fought them out in the Revolution.The bar of one hundred and forty years ago presented its analysis ofthe work of the Constitutional Convention to the public in a far lessdiffuse and a far more conclusive and united manner than did the barof ten years ago, when it had a similar opportunity in respect to theLeague of Nations. In the struggle over federal sovereignty, theadjutants who made the genius and intelligence of John Marshall avital part of our daily lives were lawyers who knew, not only whatJohn Marshall had thought and said, but what the majority of otherlawyers thought about what John Marshall had thought and said.Instances embracing the economic struggle that culminated in theCivil War, the questions implicit in the opening of a continent, andmany another could be rehearsed to labor the contrast with thepresent. Who, today, can define the views of the whole bar on thequestions involved in the wholesale barter of natural resources; in

BAR ASSOCIATIONS

the penetration of sumptuary legislation from every transient statutebook into the very Constitution itself; in the clashing implications ofthe Sherman Law and the economic necessities of modem massproduction; in the increasingly centripetal whirl of federal activities?If he exists, he is a modest individual, whose secret has not yet foundits way into print.°

Lacking solidarity and self-consciousness, it is not surprising thatthe bar of today has no opinions, and displays a decreasing capacityfor leadership. Nor that the public is rapidly coming to take it atits own valuation. The leaders alone can no longer discharge thispeculiar obligation oi the legal profession. Conditions have changed;it is no longer possible for them to represent the whole bar to theextent they once did. In the past, the leaders were a more compactgroup and formed a much higher proportion of the profession, whichitself was separated by a greater margin of intelligence from thegeneral public. On their account, the whole bar received and ac-cepted a credit which is no longer given.

It is indeed pleasant to ride the momentum of a splendid inherit-ance, but it cannot be done forever. Mr. Root has said: "The Barof America has been fumbling for years through national, state andlocal associations; in private conference, and in public addresses, tofind some way to render the public service we know we are bound torender, and that we all feel we are not rendering satisfactorily. ,,a Itgenerally happens that the team which fumbles long enough losesthe ball. Already there can be discerned on the field another alert,well-organized team-our friends, the bankers-which seems quiteready to pick it up. 4b Perhaps, it was not merely circumstantial thata federal court should have appointed a trust company as receiverin a recent million dollar bankruptcy court scandal in New York.

4l(x929) 52 N. Y. ST. B, A. REP. 265.43bSee A. C. Ritchie, The Imperialism of the Dollar (1928) 141 Av. MONTHLY

587. The author points out, that already having mobilized dollars, the bankersare now mobolizing credit, and with it almost irresistible group power to stateevery important question before the American people in their own terminology.A fine self-consciousness of duties to be assumed grows with this power until onehears it proclaimed at a meeting of the American Institute of Banking that"once the banker's chief appeal to the public was to save money, which reallymeant deposit it with him. Now you hear a veritable chorus in crescendo on theword 'service,' which, among other things, means that the banker's job is notonly to encourage saving, but to give the people an opportunity to put theirmoney to work and show them how to keep it at work most efficiently." (N. Y.Times, June 20, 1928.) In other words, as a class, to solve for the people as awhole problems far too great for the individual banker and the individual borroweror depositor.

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Nor that daily, private individuals place in others confidence whichthey once reposed in us alone. In fine, society usually ceases to payfor what it ceases to get: the prestige, the power, and the highestate which the bar has enjoyed, may quite conceivably be foundto have been limited in its original grant, and not to be an estate infee, after all. It is the duty of our generation to see that credit isrestored to the profession by again assuming leadership as a guild,by fashioning some mechanism that will ferment and draw outrepresentative opinion of the whole bar and make that opinion knownto the people. All of which will take much work, and less blindpreoccupation.

To cap the climax, the profession seems determined to give butscant attention to the matter of assimilating its new members. Inthe heat of argument, leaders of the bar sometimes denominate themundesirable persons, but the epithet is not lethal, and they remainwith us, increasing in number yearly. Until recently, the nationalbody and many state associations would not let them join until threeyears after admission to the bar. Even today no antitoxin is providedfor those whose novitiate is spent with ambulance chasers or hangingaround the doorways of criminal court rooms. No practical plan isemployed to bring them within the influence of the greater associa-tions, and to inculcate in them the ideals and traditions of whichthose associations are the repositories. Finally, when the woundfesters, and the press clamors, the courts are petitioned to conduct aninvestigation as to specified evils, and bills begin to be introducedinto the legislature, the ultimate agent which may be asked to do ourwork for us. Nor is much of any connection established between theassociations and the law schools. It is all one how much time thestudents arerequired to spendon the Canons of Ethics, or howmuch in-struction is given them in the philosophy and traditions of their guild.

These things would not be so serious were it not for the over-whelming influx that has taken place.4 There were 850 new appli-cants for admission in New York in i919; there were 3274 in1929. There were 45,000 persons enrolled in law schools last Sep-tember. Over 2ooo were admitted in New York City alone last year,and io,ooo are studying there now. This indeed constitutes a prob-lem for the profession as a whole, the importance of which can hardlybe overstated. It means that the American bar, as it has alwaysbeen thought of, its traditions, customs, and ideals, are bound shortlyto undergo a basic change, unless through some form of betterorganization, self-consciousness and aspiration come to its rescue.

44See Appendix, Table II.

BAR ASSOCIATIONS

X

Whether they shall come or not rests, of course, with the averageAmerican lawyer. Without his awakening many windy battles bidfair to be fought to no purpose. At the same time, a great opportunityseems today to lie at the doorstep of the American Bar Agsociation.Its traditions are fine, its leadership devoted; and though its strengthbe great now, its potential strength is tremendous. It is the naturalmedium through which the American legal profession should attainunity.

Thus far such unity has been hoped for through the maturingstrength of the state and local associations. Known to be resentfulof any external interference, these have been but cautiously ap-proached, the theory being that even though left isolated they wouldact as feeders, and become indirectly a source of strength to thenational body. Unfortunately, as this theory succeeded, it defeateditself. It has yielded now some 25,ooo individual members for theAmerican Bar Association. When two thousand of them arrive at ameeting, it scarcely knows what to do with them. As a deliberativebody, they can do little. On a close issue their vote would not beconvincing, since the state in which the meeting is held usuallyfurnishes about a third of the attendance.45 In practice, those whoare delegates from other associations depart from their homes withoutinstructions and arrive to find themselves possessed of personal in-fluence only. The whole notion of leadership of the American bar byprecept and example and of voicing its opinion, much less binding itsconscience, by the device of annual assemblies, belongs to a bygonecentury.

He who grants the premise that there is work to be done and thatthe problems of the profession as a whole deserve the attention of theassociations as its true agents, grants the entire first step. He grantsat once the pressing need for more and better contacts-contactsbetween associations as, such; contacts during the year; betterchannels of communication. This implies a reversal of the old idea;it calls for leadership from the top-not mere lazy hope that someday the mass will regenerate itself. The problem is primarily one ofrelation.46 Once the American Bar Association has informed itself

41See Appendix, Table III.4 The same reasoning applies, of course, in respect of state bar organization,

whether by incorporation, or any other method. The true objective is the stimu-lation of regional activity, and the establishment of group relationships, based onthe same units. Annual assemblies should be made adjective to the whole planrather than left to provide the chief medium for contacts.

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of conditions as they actually exist in each individual state, it cantreat with the bar of that state. It is not particularly importantthat the contacts it then establishes be with an incorporated bar inCalifornia, with a federated bar in Pennsylvania, and with voluntaryassociations in other states, so long as it establishes the contacts.Each bar, it will soon find, will quickly respond. Each bar willwelcome inquiries addressed to it collectively, during the year, onsubjects of importance, and will not be slow to furnish its opinion,if it thinks someone is going to listen to that opinion.

To arouse the profession to the value of group consciousness, toawaken it to the changing conditions all around it, to make it deeplysensible of its duty to the public and to the common weal-these arenoble projects. Thirty years ago, they would, perhaps, have beenfantastic. But today they are worthy of everything we can give totheir advancement. The evidence on all sides shows that the pro-fession is striving to find itself, and that a movement has startedwhich cries out for leaders to consolidate its energies and point outits goal.

Lord Bacon said: "I hold every man a debtor to his profession,from the which, ag men of course do seek to receive countenance andprofit, so ought they of duty to endeavor themselves to be a helpand an ornament thereunto. ' 47

Which of us shall say less?

47THE ELEMENTS OF THE CoMMoN LAWES OF ENGLAND (1630), preface.

BAR ASSOCIATIONS 417

APPENDIX

L Table Showing Growth of Bar Organization Movement.

Date of Organization of Number of State and Local AssociationsPresent State Association 19oo 1911 1929

1876 New York II 50 611877 Illinois 7 66 1031878 Alabama 2 4 15- Vermont 1 1 2- Wisconsin 8 7 45i88o Missouri 3 4 47- Ohio 28 32 861881 T-nnessee 7 5 81882 Texas 3 3 401883 Georgia 3 24 39- Kansas 1 4 331885 Montana 4 8 131886 New Mexico 1 2 1- West Virginia 4 21 321888 Virginia 2 8 7- Washington 8 28 331890 Michigan 7 37 28- Oklahoma - 1 41- Oregon 3 7 26I891 D. of Columbia 3 2 1- Maine 8 17 X71894 Utah 1 1 71895 Iowa 27 27 62- Pennsylvania 43 69 671896 Alaska X I I- Indiana 23 27 27- Maryland 6 12 131897 Colorado 4 10 131897 South Dakota 8 4 81898 Louisiana I 1 18- Rhode Island 2 2 31899 Arkansas 1 4 16- Hawaii I I I- New Hampshire 5 5 10- New Jersey 10 r6 18- North Carolina 1 1 39- North Dakota 2 15 121900 Nebraska 4 4 161901 Kentucky 1 4 10- South Carolina 1 I 281904 Minnesota 9 10 2619o6 Arizona I 2 4- Mississippi 4 4 191907 Florida 3 7 1919o8 Connecticut 3 5 121909 California 5 19 46- Idaho - 2 7- Massachusetts I6 I8 211911 Nevada - 51915 Wyoming - - 61923 Delaware 3 4 4

300 6o8 1216

There were earlier associations in the following states: 1825, 1892-96, Mississip-pi; 1837-38, 1882-89, Arkansas; 1849, Massachusetts; 1873-78, New Hampshire,1874, District of Columbia; 1874-8i, Iowa; 1875, 1881-9 I , Connecticut; 1876-82;Nebraska; 1878, New Jersey; 1878-81, Indiana; x881, Maine; 1882-84, Colorado;

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1882-84, Kentucky; 1883-96, Minnesota; 1884-92, South Carolina; 1887-88,Florida; 1889, 19O1, California; 189o, Nevada; 1894, Arizona; 1899, Idaho; igoi,Delaware. Compilation has not been made showing how long, in each case, theassociation continued in active existence.

Figures are from A. B. A. REPs.; dates from SMALL, op. cit. supra note 7.

Il. Statistical Tables

Population Number of Law SchoolU. S. in Lawyers RegistrationMillions in U. S. in Sept.

1880 50 64,1371890 63 89,630 4,4861895 - _

1900 76 114,46o 12,3841905 - - _1910 92 114,704 19,4981915 - 21,9231920 1O6 122,519 24,5031925 - 44,3401927 - 48,5931929 120 155,000 45,777

AttendanceMembership at Annual No. of BarA. B. A. Meetings Associations

A,B. A. in U. S.552 97 17 (1878)943 132 188

1,393 1991,720 230 3002,606 277' 518 (19o6)4,701 324 6o9

1O,651 531 672 (1916)15,181 727 -23,524 1839 -25,719 1448 -28,000 1578 1216

New York State Bar Association membership: 1878, 438; 1888, 335; 1900, 750;1912, 2IOO; 1920, 33II; 1929, 495o. Law School registration in New York State:1916, 2705; 1923, 6225; 1928, 10470; 1929, 995

o. The New York State Board of

Law Examiners issued 15,939 certificates during the decade commencing 1920.New York secondary school registration increased from 211,000 to 400,000during the same period.

Figures are from U. S. CENsus REP.; REED, op. cit. supra note 17, BULL.No. 15, c. xix; No. 21, p. 32; supp. (1929) 62; THE AM. L. ScHooL REv.;THE LAW STUDENT; A. B. A. REPS.; and N. Y. S. B. A. REPs. For 1929, esti-mates are given. The last three entries, column 3, exclude title searchers,notaries, and justices of the peace (7445 in 1910; 10071 in 1920). The censusfigures did not distinguish prior to 191o. The last two entries, column 6, refer tomembers in attendance; the earlier figures to gross attendance.

I. Table of Attendance at Annual Meetings of American Bar Association

AttendanceAverage Average Attendance Attendance 1924-1929

State Membership 1924-1928 Incl., Memphis Incl., of State1924-I928 Excluding State 1929, Exclud- Holding

Incl. Holding Convention ing Tenn. ConventionAlabama ....... 212 10 31 -Alaska ........ 16 o -Arizona ....... 117 8 3 -Arkansas ....... 298 14 214 -California ...... 1423 31 32 -Colorado ...... 515 14 20 783Connecticut .... 432 12 8 -Delaware ...... 71 6 3 -D. of Columbia 656 44 28 -

Florida ........ 354 15 29 -

Georgia ........ 325 10 15 -Idaho ......... . O6 7 3 -Illinois ........ 1983 88 IO -Indiana ....... 471 31 23 -Iowa .......... 530 33 29 -Kansas ........ 350 45 33 -Kentucky ...... 311 14 48 -Louisiana....... 333 12 44 -Maine ........ 17' 3 2 -

BAR ASSOCIATIONS 419

M.-ConinuedAttendance

Average Average Attendance Attendance 1924-1929

State Membership 1924-1928 Incl., Memphis Incl., of State1924-1928 Excluding State 1929, Exclud- Holding

Incl. Holding Convention ing Tenn. ConventionMaryland ...... 457 22 17Massachusetts.. 1353 26 25 -

Michigan ...... 756 25 20 585Minnesota .... 623 29 13 -

Mississippi ..... 139 Io 226Missouri ....... 775 46 70Montana ...... 116 5 2

Nebraska ...... 342 35 11Nevada ....... 96 4 -New Hampshire 83 1 2 -

New Jersey .... 548 20 I6 -New Mexico ... 103 Io 5 -

New York..... 3190 75 48 319North Carolina. 299 12 19 -

North Dakota.. 175 4 2Ohio .......... 1126 77 65Oklahoma ..... 352 39 51Oregon ........ 232 25 6 -Pennsylvania... 1474 48 24 232

Rhode Island... 142 6 6 -South Carolina. 194 9 6South Dakota.. 172 9 9 -

Tennessee ...... 368 14 - 720

Texas ......... 583 40 48 -

Utah .......... 125 8 5 -

Vermont ....... 87 5 3 -Virginia ....... 386 12 8 -Washington .... 468 4 6 456West Virginia.. 304 i6 13 -

Wisconsin...... 503 24 24 -

Wyoming ...... 102 s 5 -Foreign ........ 236 3 2 -

24,590 1,076 1,423

Six year average attendance, gross: 1793. Number of members attending,average, 1927-1929 inclusive: 1433. Memphis attendance: 1578 members, 636non-members, 2214 gross. Figures compiled by Mr. D. A. Simmons of Houston,Tex. See Simmons, Representative Government for the Bar (1929) 13 J. AM. JUD.Soc. 74.